38 §347-A. Violations
Title 38: WATERS AND NAVIGATION
Chapter 2: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subchapter 1: ORGANIZATION AND POWERS
§347-A. Violations
1. General procedures. This subsection sets forth procedures for enforcement actions.
A. Whenever it appears to the commissioner, after investigation, that there is or has been a violation of this Title, of rules adopted under this Title or of the terms or conditions of a license, permit or order issued by the board or the commissioner, the commissioner may initiate an enforcement action by taking one or more of the following steps:
(1) Resolving the violation through an administrative consent agreement pursuant to subsection 4, signed by the violator and approved by the board and the Attorney General;
(2) Referring the violation to the Attorney General for civil or criminal prosecution;
(3) Scheduling and holding an enforcement hearing on the alleged violation pursuant to subsection 2; or
(4) With the prior approval of the Attorney General, commencing a civil action pursuant to section 342, subsection 7 and the Maine Rules of Civil Procedure, Rule 3. [2003, c. 245, §5 (AMD).]
B. Before initiating a civil enforcement action pursuant to paragraph A, the commissioner shall issue a notice of violation to the person or persons the commissioner considers likely to be responsible for the alleged violation or violations. The notice of violation must describe the alleged violation or violations, to the extent then known by the commissioner; cite the applicable law, rule and term or condition of the license, permit or order alleged to have been violated; and provide time periods for the alleged violator to take necessary corrective action and to respond to the notice. For violations the commissioner finds to be minor, the notice may state that further enforcement action will not be pursued if compliance is achieved within the time period specified in the notice or under other appropriate circumstances. The commissioner is not required to issue a notice of violation before issuing an emergency order pursuant to subsection 3 or other applicable provision of this Title; nor is the commissioner required to issue a notice of violation before referring an alleged violation to the Attorney General for criminal prosecution or in a matter requiring immediate enforcement action. [1993, c. 204, §1 (RPR).]
C. [1993, c. 204, §1 (RP).]
D. [1993, c. 204, §1 (RP).]
[ 2003, c. 245, §5 (AMD) .]
2. Hearings. The commissioner shall give at least 30 days' written notice to the alleged violator of the date, time and place of any hearing held pursuant to subsection 1, paragraph A, subparagraph (3). The notice must specify the act or omission which is claimed to be in violation of law or regulation.
Any hearing conducted under the authority of this subsection must be in accordance with the provisions of Title 5, chapter 375, subchapter IV. At the hearing, the alleged violator may appear in person or by attorney and answer the allegations of violation and file a statement of the facts, including the methods, practices and procedures, if any, adopted or used by that person to comply with this chapter and present such evidence as may be pertinent and relevant to the alleged violation.
After hearing, or in the event of a failure of the alleged violator to appear on the date set for a hearing, the commissioner shall, as soon as practicable, make findings of fact based on the record and, if the commissioner finds that a violation exists, shall issue an order aimed at ending the violation. The person to whom an order is directed shall immediately comply with the terms of that order.
[ 1999, c. 127, Pt. A, §54 (AMD) .]
3. Emergency orders. Whenever it appears to the commissioner, after investigation, that there is a violation of the laws or regulations the department administers or of the terms or conditions of any of the department's orders that is creating or is likely to create a substantial and immediate danger to public health or safety or to the environment, the commissioner may order the person or persons causing or contributing to the hazard to immediately take such actions as are necessary to reduce or alleviate the danger. Service of a copy of the commissioner's findings and order must be made by the sheriff or deputy sheriff or by hand delivery by an authorized representative of the department in accordance with the Maine Rules of Civil Procedure. In the event that the persons are so numerous that the specified method of service is a practical impossibility or the commissioner is unable to identify the person or persons causing or contributing to the hazard, the commissioner shall make the order known through prominent publication or announcement in news media serving the affected area.
The person to whom the order is directed shall comply with the order immediately. The order may not be appealed to the Superior Court in the manner provided in section 346, but within 48 hours after receipt of the order the person may apply to the board for a hearing on the order. Within 7 working days after receipt of the application, the board shall hold a hearing, make findings of fact and vote on a decision that continues, revokes or modifies the order. That decision must be in writing and signed by the board chair using any means for signature authorized in the department's rules and published within 2 working days after the hearing and vote. The nature of the hearing is an appeal. At the hearing, all witnesses must be sworn and the commissioner shall first establish the basis for the order and for naming the person to whom the order was directed. The decision of the board may be appealed to the Superior Court in the manner provided by section 346.
[ 2005, c. 330, §5 (AMD) .]
4. Administrative consent agreements. Following issuance of a notice of violation pursuant to subsection 1 and after receipt of the alleged violator's response to that notice or expiration of the time period specified in the notice for a response, in situations determined by the commissioner appropriate for further enforcement action, the commissioner may send a proposed administrative consent agreement to the alleged violator or violators.
A. Except as otherwise expressly agreed to by the Attorney General, all proposed administrative consent agreements must be reviewed and approved by the Department of the Attorney General before being sent to the alleged violator. [1993, c. 204, §2 (NEW).]
B. All proposed administrative consent agreements sent to the alleged violator must be accompanied by written correspondence from the department, in language reasonably understandable to a citizen, explaining the alleged violator's rights and responsibilities with respect to the proposed administrative consent agreement. The correspondence must include an explanation of the factors considered by the commissioner in determining the proposed civil penalty, a statement indicating that the administrative consent agreement process is a voluntary mechanism for resolving enforcement matters without the need for litigation and an explanation of the department's procedures for handling administrative consent agreements. The correspondence must also specify a reasonable time period for the alleged violator to respond to the proposed administrative consent agreement and offer the opportunity for a meeting with department staff to discuss the proposed agreement. Consent agreements shall, to the greatest extent possible, clearly set forth all the specific requirements or conditions with which the alleged violator must comply. [1995, c. 123, §3 (AMD).]
C. After a proposed administrative consent agreement has been sent to the alleged violator, the commissioner may revise and resubmit the agreement if further circumstances become known to the commissioner, including information provided by the alleged violator, that justify a revision. [1993, c. 204, §2 (NEW).]
D. The public may make written comments to the board at the board's discretion on an administrative consent agreement entered into by the commissioner and approved by the board. [1993, c. 204, §2 (NEW).]
E. When the department and the alleged violator can not agree to the terms of a consent agreement and the department elects to bring an enforcement action in District Court pursuant to section 342, subsection 7, the District Court shall refer the parties to mediation if either party requests mediation at or before the time the alleged violator appears to answer the department's complaint. The parties must meet with a mediator appointed by the Court Alternative Dispute Resolution Service created in Title 4, section 18-B at least once and try in good faith to reach an agreement. After the first meeting, mediation must end at the request of either party. If the parties have been referred to mediation, the action may not be removed to Superior Court until after mediation has occurred. [1995, c. 560, Pt. I, §16 (AMD).]
[ 1995, c. 560, Pt. I, §16 (AMD) .]
5. Enforcement. All orders of the department may be enforced by the Attorney General and the department. If any order of the department is not complied with, the commissioner shall immediately notify the Attorney General.
[ 2007, c. 292, §12 (AMD) .]
6. Public participation in enforcement settlements. After the State receives authority to grant permits under the Federal Water Pollution Control Act, 33 United States Code, 1982, Section 1251 et seq., as amended, in any civil enforcement action brought under this section, section 348 or 349 involving discharges regulated by the Federal Water Pollution Control Act, the department shall publish notice of and provide at least 30 days for public comment on any proposed settlement as follows.
A. In the case of administrative consent agreements, the proposed agreement must be filed with the board and notice of the filing must be placed on the board's agenda at least 30 days before the board takes any action on the agreement. The Attorney General and the department shall receive and consider, and the department shall provide the board with summaries of, any written comments relating to the proposed agreement. [1997, c. 794, Pt. A, §5 (NEW).]
B. In the case of judicial enforcement, each proposed judgment by consent must be filed with the court at least 30 days before the judgment is entered by the court. Prior to the entry of judgment, notices of the proposed judgment must be published in a newspaper having general circulation in the area in which the alleged violation occurred, and the Attorney General and the department shall receive and consider, and file with the court, any written comments relating to the proposed judgment. [1997, c. 794, Pt. A, §5 (NEW).]
C. The Attorney General shall reserve the right to withdraw or withhold its consent to the proposed judgment if the comments, views or allegations concerning the judgment disclose facts or considerations that indicate that the proposed judgment is inappropriate, improper or inadequate and oppose an attempt by any person to intervene in the action. When the public interest in this notification process is not compromised, the Attorney General may permit an exception to publication as set forth in this section in a specific case where extraordinary circumstances require a period shorter than 30 days or a notification procedure other than that set forth in this section. [1997, c. 794, Pt. A, §5 (NEW).]
[ 1997, c. 794, Pt. A, §5 (NEW) .]
7. Landowner liability for actions of others. An owner, lessee, manager, easement holder or occupant of premises is not subject to criminal sanctions or civil penalties or forfeitures for a violation of laws or rules enforced by the department or the board if that person provides substantial credible evidence that the violation was committed by another person other than a contractor, employee or agent of the owner, lessee, manager, easement holder or occupant. This subsection does not prevent the department, the board or a court from requiring an owner, lessee, manager, easement holder or occupant of premises to remediate or abate environmental hazards or damage or to reimburse the department for the cost of such remediation or abatement. An owner, lessee, manager, easement holder or occupant of premises is subject to criminal sanctions or civil penalties or forfeitures for failure to comply with a lawful administrative order or court order to remediate or abate environmental hazards or damage.
A. The department shall investigate substantiated allegations by an owner, lessee, manager, easement holder or occupant that the violation was caused by another person. [2001, c. 365, §2 (NEW).]
B. If an owner, lessee, manager, easement holder or occupant is subjected to criminal sanctions or civil penalties or forfeitures, or if such a person is required to remediate or abate environmental hazards or damage as a result of violations by another person, the owner, lessee, manager, easement holder or occupant has a cause of action against the actual violator to recover all damages and costs, including attorney's fees, incurred in connection with the environmental damage, and all costs, including attorney's fees, incurred in bringing the action to recover. [2001, c. 365, §2 (NEW).]
C. This subsection does not apply to persons who are defined as "responsible parties" under chapter 3, subchapters II-A and II-B; chapter 13, subchapter II-A; or chapter 13-B. [2001, c. 365, §2 (NEW).]
[ 2001, c. 365, §2 (NEW) .]
8. Limitations on air and wastewater discharge enforcement actions. The following limitations apply to air and wastewater discharge enforcement actions.
A. If a licensee has reported to the department a violation of chapter 4 or of rules adopted under chapter 4, an enforcement action for civil or administrative penalties brought by the department or the Attorney General for that violation must be initiated within 10 years of the date the licensee reported the violation to the department. [2007, c. 337, §1 (NEW).]
B. If a licensee has reported to the department a violation of chapter 3, subchapter 1, article 2 or of rules adopted under chapter 3, subchapter 1, article 2, an enforcement action for civil or administrative penalties brought by the department or the Attorney General for that violation must be initiated within 10 years of the date the licensee reported the violation to the department. [2007, c. 337, §1 (NEW).]
[ 2007, c. 337, §1 (NEW) .]
SECTION HISTORY
1989, c. 311, §4 (NEW). 1989, c. 890, §§A31,32,40 (AMD). 1993, c. 204, §§1,2 (AMD). 1995, c. 123, §§3,4 (AMD). 1995, c. 560, §I16 (AMD). 1997, c. 794, §A5 (AMD). 1999, c. 127, §A54 (AMD). 2001, c. 365, §2 (AMD). 2003, c. 245, §5 (AMD). 2005, c. 330, §5 (AMD). 2007, c. 292, §12 (AMD). 2007, c. 337, §1 (AMD).